TO BE PUBLISHED
September 19, 1994
IN RE: Davy Jones/University of Kentucky
OPEN RECORDS DECISION
This appeal originated in a series of requests for public records submitted by Mr. Davy Jones, Associate Professor of Toxicology at the University of Kentucky, to the University's Official Custodian of Records, Mr. Donald B. Clapp. The documents implicated by Mr. Jones's request are diverse in character, but can in general be described as records pertaining to personnel decisions, and the policies and procedures employed by the University in arriving at those decisions. Based on a review of the voluminous materials submitted, it is our impression that Mr. Jones objects to the University's actions relative to the following open records requests:
1. The University's denial of his September 11, 1992, request for the departmental recommendation that Ms. Marijo Wilson be placed on a terminal contract.
The University relied on KRS 61.878(1)(a), (h), and (i), arguing that the requested document was an evaluation containing preliminary recommendations in which opinions were expressed. Because the record does not relate to the requester personally, the University maintained its disclosure would constitute a clearly unwarranted invasion of personal privacy.
2. The University's decision to release a redacted copy of the Chancellor's letter to
the Dean of the College of Agriculture, notifying the Dean that the recommendation to promote Mr. Panayiotis M. Zavos to the rank of full professor was not approved.
Relying on KRS 61.878(1)(i), the University took the position that the redacted portions of the record were preliminary recommendations and preliminary memoranda in which opinions are expressed.
3. The University's denial of his September 11, 1992, request for formal merit evaluation forms containing the final merit evaluation ratings for Ms. Marijo Wilson and Mr. Chris Christensen for each year they were employed by the University.
The University invoked KRS 61.878(1)(a), (h), and (i) to authorize nondisclosure of records it deemed "evaluations" or preliminary recommendations in which opinions are expressed.
4. The University's denial of his September 14, 1992, request for each document used as a reference for the faculty handbook section on conducting meetings found on page 29 of the handbook, and each document used as a reference for the section on access to, and destruction of, records found on page 28 of the handbook.
The University argued that this was a request for a list of reference sources and information, not a request for a specifically identified record, and therefore was not a request covered by the Open Records Act.
5. The University's denial of his September 14, 1992, request for the document submitted to Juanita Fleming by the Office of Legal Counsel relative to University meetings policy, which was the basis for Ms. Fleming's January memorandum to Mr. Jones on this subject.
Relying on KRS 61.878(1)(k), which incorporates KRS 422A.0503, the University maintained that these records were protected as privileged communications between attorney and client.
6. The University's denial of his September 8, 1992, request for the records of the following meetings:
a. The meeting of the college-level appeals committee with Mr. Jones, the Entomology Chairman, and the Associate Dean, at Mr. Jones's merit salary evaluation appeal.
The University stated that the records as described do not exist.
b. Preliminary notes or other records authored by the members of the Chancellor's merit salary appeals committee in connection with the testimony of Dean Little and the associate deans at a spring '91 meeting.
The University stated that the requested records were not subject to the Open Records Act since they do not fall within the definition of a "public record" found at KRS 61.870(2).
c. Minutes of the meeting of the merit salary appeals committee with the Dean and/or the Associate Deans referenced above.
The University stated that the records as described do not exist.
d. Preliminary notes and other records authored by the members of the President's Privilege and Tenure Committee in connection with the testimony of Chairman Pass in the fall of 1988.
The University denied this request stating that preliminary notes or other records authored by a committee member in other than a final report of the committee are not public records.
e. Minutes of the meeting of the Privilege & Tenure Committee with the Entomology Chairman referenced above.
The University stated that the records as described do not exist.
f. Preliminary notes and other records of a meeting of the Entomology faculty in connection with Ms. Marijo Wilson's 1988 four year tenure review at which the faculty voted that she be terminally reappointed.
g. Preliminary notes and other records of a meeting of the Entomology faculty in connection with Ms. Marijo Wilson's 1988 four year tenure review at which the faculty withdrew its decision that she be terminally reappointed.
7. The University's decision to release redacted copies of the letters of resignation of a number of University employees identified in Dr. Jones's September 11, 1992, request.
Although it released redacted copies of these documents, the University invoked KRS 61.878(1)(a), arguing that portions of the letters contained information of a personal nature.
Unable to resolve Mr. Jones's appeal on the facts presented, this Office requested additional information from the University pursuant to KRS 61.880(2). In view of our limited familiarity with the policies and procedures which govern personnel decision-making at the University, we asked that the University describe those policies and procedures, including appointment, reappointment and terminal reappointment, performance evaluations, promotions, and tenure.
We also asked that the University substantiate its actions by elaborating on its responses to those requests identified in paragraphs one, two, and three, in which it took the position that the requested documents were exempt under KRS 61.878(1)(h) and (i). In addition, we asked that the University elaborate on its responses to Mr. Jones's requests for records generated at the meetings identified in paragraph six. We asked whether it was the University's position that these meetings are not public meetings for purposes of the Open Meetings Act, and are therefore not subject to KRS 61.835. Finally, we asked whether the University maintains that any notes prepared by committee members are not public records, or if it is the University's position that they are exempted by KRS 61.878(1)(a) - (k). To facilitate our review, we asked that the University provide us with unredacted copies of the disputed records. Those records were not disclosed to other parties, and have been destroyed.
In its response, the University's custodian of records explained that, in general:
[A]ll faculty personnel actions involve consultation with faculty of departments and colleges, with formal recommendations for action up to the level where a final decision is made. The decision-maker may be the dean, the chancellor, the president, or the Board of Trustees.
Mr. Clapp furnished this Office with a copy of a flow chart summarizing the procedures which govern faculty personnel action. The University's position relative to its denial of the requests identified in paragraphs one, two, three, and six is set forth below.
It is apparent that Mr. Jones's mammoth appeal raises issues of considerable importance, and that our resolution of that appeal will have far-reaching implications for the University and other similarly situated public agencies. In view of the breadth of the appeal, and to eliminate confusion, we have prepared our decision so as to correspond to the numbered paragraphs above. We will treat each issue separately and sequentially.
September 11, 1992, request for departmental recommendation that Ms. Marijo Wilson be placed on a terminal contract.
In denying Mr. Jones's request for the departmental recommendation that Ms. Marijo Wilson be placed on a terminal contract, the University relied on KRS 61.878(1)(a), (h), and (i), and a number of opinions of this Office including 92-ORD-1145, OAG 91-128, OAG 89-90, OAG 82-211, OAG 82-204, OAG 80-614, OAG 78-738, and OAG 77-394. Mr. Clapp explained:
Under University of Kentucky regulations the Department Chairman (in this case Dr. Pass) is responsible for making a recommendation on terminal reappointments. A terminal reappointment is notification that the year of reappointment will be the appointee's last year of employment at the University. University procedures also require that the Department Chair "consult" with other departmental members. Chairman Pass's letter is the formal recommendation to the Dean (who would issue the terminal contract document) and contains the documentation of the required consultation with his faculty. Thus any input from faculty are officially only their opinions about how the chairman should make his recommendation. The Chairman's recommendation is clearly that, a recommendation to the dean that a terminal reappointment be issued, but in this case UK released the recommendation. The University believes that the redacted portions of this letter fall squarely within the exemption contained in KRS 61.878(1)(h), in that both sentences contain an opinion of a person, not in the decision-making line of authority, that it is a "preliminary recommendation and/or a preliminary memoranda in which opinions are expressed," before the dean and/or chairman of the college took action in [sic] Professor Wilson's employment status. Accordingly, the opinions of those faculty members were redacted. While UK would make this
information available to the person who is the subject of the record, UK believes the release of this information to third parties would constitute an unwarranted invasion of personal privacy, in light of the cited opinions of your office.
It is Mr. Jones's position that the departmental recommendation is an open record in its entirety. In a multipronged attack, he argues that because the recommendation was approved and adopted by the Dean, it forfeited its preliminary character, and therefore could not be withheld pursuant to KRS 61.878(1)(i). He challenges the University's invocation of KRS 61.878(1)(h), asserting that that exemption is only applicable to "preliminary notes," and not to "preliminary memoranda in which opinions are expressed." In his view, the University's reliance on both KRS 61.878(1)(h) and (i) is clearly misplaced.
Citing numerous federal and state authorities, Mr. Jones further maintains that the departmental recommendation is not exempt pursuant to KRS 61.878(1)(a), the privacy exception. He notes that nothing in the finalized
recommendation "is not already in the public domain . . . ." The fact that Dr. Wilson was placed on terminal contract was publicly announced and the procedures employed in arriving at this decision are well known. Mr. Jones cites a line of authority holding that the public has a legitimate interest in ascertaining whether a public employee is properly discharging his or her duties. "If," he argues, "an employee's discharge of duties has been so poor as to warrant termination, the public has a legitimate right to the 'finalized' and adopted departmental recommendation to terminate that employee."
The issue thus presented is whether the University properly relied on KRS 61.878(1)(a), (h), and (i) in denying Mr. Jones's request for the departmental recommendation that Ms. Marijo Wilson be placed on a terminal contract. It is unclear whether the University flatly denied his request or released a redacted copy of the document identified in his request. We conclude that the University must release the departmental recommendation to Mr. Jones, if it has not already done so, but that it may properly redact those portions of the recommendation which contain expressions of opinion not adopted by the department and which clearly implicate the privacy interests of the persons who expressed those opinions.
Mr. Jones's argument is premised on the fact that the departmental recommendation was ultimately approved and adopted by the Dean. While we concur with him in his view that a recommendation ceases to be preliminary when it is incorporated into, or "adopted by the [agency] as the basis of its final action," our examination of an unredacted copy of Chairman Pass's departmental recommendation to the Dean discloses several statements attributed to faculty members which do not reflect the majority view, and which clearly were not incorporated into final University action. Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Company, Ky.App., 663 S.W.2d 953, 956 (1983); City of Louisville v. Courier-Journal and Louisville Times Company, Ky.App., 637 S.W.2d 658, 659 (1982); University of Kentucky v.
Courier-Journal and Louisville Times Co., Ky., 830 S.W.2d 373, 378 (1992).
This Office has long recognized that inspection of documents of an evaluative nature may be denied under KRS 61.878(1)(a) and (i). See, e.g. OAG 77-394; OAG 78-738; OAG 79-348; OAG 80-58; OAG 82-204; OAG 82-211; OAG 86-15; OAG 89-90; OAG 91-62. Fundamental to these opinions was the notion that an evaluation is a matter of opinion and does not represent any action on the part of the agency. KRS 61.878(1)(h) and (i). The only documents to which the public is entitled are documents relating to the final action which the agency takes in light of the evaluation, and documents incorporated thereunto, or which were adopted by the agency as the basis for that action. Additionally, we have recognized that the privacy interests protected by KRS 61.878(1)(a) are as much those of the evaluator as those of the person being evaluated, since the evaluator generally makes his evaluation with the understanding that it will be kept confidential. OAG 79-348; OAG 86-15.
Mr. Jones attempts to distinguish between the "subsequent departmental recommendation" and "the evaluation of tenure progress of the employee." Of necessity, however, that recommendation contains comments and opinions of an evaluative nature, some of which were not approved and adopted by the Dean. Accordingly, they were not incorporated into final agency action, nor can they be said to have been adopted by the University as the basis for that action. We concur with the University in its view that these portions of the departmental
recommendation can be redacted pursuant to KRS 61.878(4). Moreover, we believe that the individuals who expressed these opinions did so with the understanding that they would not be publicized. As noted above, if the University has not already done so, it should make the departmental recommendation available to Mr. Jones, but may redact those statements reflecting personal opinions which were not adopted by the Dean.
The redacted copy of the Chancellor's letter to the Dean of the College of Agriculture notifying the Dean that the recommendation to promote Mr. Panayiotis M. Zavos to the rank of full professor was not approved.
Mr. Jones next objects to the University's decision to release a redacted copy of the Chancellor's letter to the Dean of the College of Agriculture, notifying the Dean that the recommendation to promote Mr. Panayiotis M. Zavos to the rank of full professor was not approved, rather than a copy of the letter in its entirety. In his response to this Office's request for additional information, Mr. Clapp argued:
The University redacted [a] portion of the letter on the basis of KRS 61.878(i), previously (h). In that case the Chancellor, in his official role, made a recommendation (contained in another letter not the subject of this appeal) to the President that Dr. Zavos' [sic] promotion not be approved. The President concurred. In the subject letter informing the dean of the result of Dr. Zavos' [sic] promotion request, the Chancellor's language is obviously his opinion given to the Dean, about why the promotion was not approved.
(These letters, by the way, have been provided to Dr. Zavos pursuant to KR 61.878(3)). Inasmuch as opinions are exempt from disclosure under the act, the University withheld them, but released the substance of the letter, i.e., that the promotion was not approved. . . . While UK would make this information available to the person who is the subject of the record, UK believes the release of this information to third parties would constitute an unwarranted invasion of personal privacy, in light of the cited opinions of your office.
In his response, Mr. Jones asserts that "preliminary material incorporated into final agency decisions or post-decisional notifications are . . . stripped of their preliminary status." Citing OAG 91-90, OAG 91-112, OAG 91-154, and the Kentucky Supreme Court's decision in University of Kentucky v. Courier-Journal & Louisville Times Company, Ky., 830 S.W.2d 373 (1992), he explains:
[T]he post-decisional notification of the Chancellor to the Dean constitutes a report of the President's decision. This report is a report on both the President's decision and the reasoning and events behind the decision, and must be released to the public unredacted . . . .
The remainder of this portion of Mr. Jones's appeal is a recapitulation of his earlier arguments.
The issue presented in this portion of Mr. Jones's appeal is whether the University properly redacted portions of the Chancellor's letter to the Dean. For the reasons set forth below, we conclude that the University's actions were improper.
We begin by noting that the federal judiciary has, in interpreting the federal analogue to KRS 61.878(1)(i) which is found at 5 U.S.C.'552(b)(5) of the Freedom of Information
Act, clearly distinguished between "predecisional memoranda prepared in order to assist an agency decision-maker in arriving at his decision, which are exempt from disclosure, and post-decisional memoranda setting forth the reasons for an agency decision already made, which are not." Renegotiation Board v. Grumman Aircraft Engineering Corporation, 421 U.S. 168, 44 L.Ed.2d 57, 95 S.Ct. 1491 (1975). In order to fall within the "deliberative process" exception, a document must be antecedent to adoption of agency policy and must be related to the process by which policies are formulated. Deliberative or advisory material which is intended to explain a decision or policy already adopted is not within the purview of 5 U.S.C.'552(b)(5).
The underlying purpose of both the state and federal exceptions to public disclosure is to permit agency decision makers to receive the benefit of frank and uninhibited discussion of policy matters by agency staff by protecting their advise and opinions from public scrutiny. Consistent with the principle that predecisional documents incorporated into final agency action forfeit their preliminary status and are subject to inspection, we believe that a postdecisional document setting forth the reasons for the agency's decision cannot be deemed preliminary within the meaning of KRS 61.878(1)(i). Accordingly, the University is directed to release to Mr. Jones an unredacted copy of the Chancellor's letter to the Dean relative to Mr. Zavos's promotion.
September 11, 1992, request for formal merit evaluation forms containing the final merit evaluation ratings for Ms. Marijo Wilson and Mr. Chris Christensen for each year they were employed by the University.
The third issue raised in Mr. Jones's appeal relates to the University's decision to withhold the formal merit evaluation forms and final merit evaluation ratings for two faculty members at the University. Mr. Clapp invoked KRS 61.878(1)(a), (h), and (i) in denying Mr. Jones access to these records which Mr. Clapp characterized as preliminary recommendations in which opinions are expressed. Elaborating on this position, he observed:
The evaluation forms cover the professors' rating in several areas: teaching, research
and service. The University relies directly on the rationale stated in the letter of denial and the opinions of the Attorney General cited above, including 92-ORD-1145, which have consistently withheld the evaluation ratings of individual professors from public scrutiny. While UK would make this information available to the person who is the subject of the record, UK believes the release of this information to third parties would constitute an unwarranted invasion of personal privacy, in light of the cited opinions . . . .
It is Mr. Jones's position that because a faculty member's merit salary evaluation rating can be calculated through simple mathematics, it is an "open secret" which is not exempt from inspection under the Open Records Law. Mr. Jones explains:
Under [the] salary decision structure put in place by the University . . . , the level of merit is identified by the merit evaluation ratings decided on for each faculty member by the Dean, and from these merit ratings the level of salary increase is mathematically calculated. Each year the policy for that year on the percent salary increase to be awarded for each merit rating is sent by written policy announcement to each faculty member. . . . Since (adopted recommendations on) salaries of faculty are available under the Open Records law, it is a simple matter . . . to calculate the merit salary evaluation rating for faculty member [sic] from their percent salary from one year to the next.
Mr. Jones maintains that information which is easily discernible through "officially released information and common sense" cannot otherwise be withheld. Citing correspondence from Mr. Clapp relative to an earlier open records request, Mr. Jones argues that "the merit salary rating recommendation of the Chairman to the Dean . . . is the same document as the
Chairman's recommendation to the Dean on the merit performance evaluation rating."
Mr. Jones emphasizes that he did not request any narratives or written comments expressing the opinion of the Chairman or Dean which might be attached. In his view, Mr. Clapp's reliance on OAG 77-394, relating to performance evaluations, is clearly misplaced. Mr. Jones reasons:
I have not requested that part . . . [of the evaluation] that states the opinion of the Dean on the strengths and weaknesses of the performance of the faculty member or on his/her personal characteristics, and which is the only part that purportedly may be withheld under OAG 77-394. The final merit salary rating decided upon by the Dean is functionally the same as what the Attorney General intended to disclose to the public in OAG 77-394 by the statement that the public has the right to university decisions based on the Dean's opinion of the individual's performance. The example given by the Attorney General in OAG 77-394 was the offering of a contract, which will contain certain terms of employment. Similar is the decision to award a certain percent salary increase to the individual, which, actually, is a part of the con-
tractual terms and conditions of their employment.
In closing, Mr. Jones asserts that the University is estopped from denying his request by virtue of the fact that it previously released the disputed documents to Ms. Wilson and Mr. Christensen prior to the 1992 amendment to KRS 61.878(3), relating to the release of public records to public employees.
We are asked to determine if the University properly denied Mr. Jones's request for formal merit evaluation forms and final merit evaluation ratings for Ms. Wilson and Mr. Christensen pursuant to KRS 61.878(1)(a), (h), and (i). Based on a series of prior opinions of this Office, we conclude that the University's action relative to evaluation forms and evaluation ratings was proper.
As we have noted, the Attorney General has long recognized that inspection of employee evaluations may be denied under KRS 61.878(1)(a), (h), and (i). OAG 77-394; OAG 79-348; OAG 80-58; OAG 82-204; OAG 83-286; OAG 86-15; OAG 89-90. In OAG 77-394, we stated:
The evaluation of [an employee's] performance is a matter of opinion and does not constitute any action on the part of the [agency]. We believe that [employee] is therefore entitled to have such information withheld from the public. The action which the [agency] takes in light of the evaluation is what the public is entitled to know.
OAG 77-394, p. 2. We have recognized that the privacy interests protected are as much those of the evaluator as those of the person being evaluated. The single exception which has been carved out of this general rule pertains to high ranking public officials whose performance is commensurate with the performance of their agencies, and whose expectation of privacy in those evaluations is correspondingly reduced. OAG 90-1; 92-ORD-1145.
We have examined the available evaluation forms and ratings for Ms. Wilson and Mr. Christensen. As Mr. Clapp indicates, the professors are numerically rated on various skills such as teaching and research. Their total credit points are then tallied and divided by one hundred to arrive at a numerical rating which corresponds to a descriptive designation such as "Excellent." While it is true that that rating is directly tied into the professor's salary increment,
and that the rating can be ascertained by mathematical calculations based on salary, we do not believe that the evaluation is stripped of its nonpublic status by virtue of these facts.
Clearly, Mr. Jones, like any requester, is entitled to records reflecting his colleagues' salaries. This is the "action which the [University] takes in light of the evaluation." If the University relied exclusively on KRS 61.878(1)(h) and (i) to authorize the withholding of the evaluation forms, the forms might well forfeit their exempt status, since they appear to have been adopted as the basis for the professor's salary increment. This was not, however, the sole basis for the University's denial of Mr. Jones's request. Instead, the University focused on the privacy interests implicated by release of the evaluation. It is our opinion that KRS 61.878(1)(a) authorizes the nondisclosure of these records.
We reaffirm our position relative to performance evaluations of public employees. As we have stated, the public's interest in disclosure of evaluations is in general outweighed by the public employee's privacy interest, as well as the privacy interests of the evaluator. This is no less true simply because the final rating can be ascertained by alternate means. The various ratings attributed to the employee for the skills on which he or she is rated, and which are totalled to arrive at the final rating, cannot be so ascertained. Regardless of the procedures used by the agency in conducting performance review, we adhere to the position enunciated in our earlier opinions which, in our view, is well grounded in the law. The University is not required to release documents of an evaluative nature, however they may be styled, to third persons who seek access to them. Nor is the University estopped from denying Mr. Jones's request because it previously released the same documents to Ms. Wilson and Mr. Christensen, in view of KRS 61.878(3) and its statutory predecessor.
September 14, 1992, request for each document used as a reference for the faculty handbook section on conducting meetings, and each document used as a reference for the section on access to and destruction of records.
In its response to Mr. Jones's request for each document used as a reference for the faculty handbook sections on conducting meetings and access to and destruction of records, the University stated:
This is a request for a list of reference sources and information used to compose the language of the Faculty Handbook. It is not a request for a specifically identified "record"; accordingly, your request is not covered by the Open Records Act.
Mr. Jones objects to the University's assertion that the description of the records sought is inadequate, noting that the federal courts have shown little patience for such claims. In support of this position, he cites Bristol-Myers Co. v. Federal Trade Commission, 424 F.2d 935 (D.C. Cir. 1970), in which the United States Court of Appeals for the District of Columbia held:
The statutory requirement that a request for disclosure specify "identifiable records" calls for "a reasonable description enabling the government employee to locate the requested records," but is "not to be used as a method of withholding records." The F.T.C. can hardly claim that it was unable to ascertain which documents were sought by Bristol-Myers. The Commission relied on certain materials in promulgating its proposed rule, and referred to them in announcing the rule making proceedings. These materials are adequately identified in the request for disclosure of the items mentioned in the Commission's Notice.
Bristol-Myers, supra at 938. Mr. Jones notes that he consciously paraphrased the language of the records request which the circuit court declared sufficiently descriptive in
Bristol-Myers, supra, in an effort to avoid this response from the University.
The issue thus presented in this portion of Mr. Jones's appeal is whether the University properly denied his request on the grounds that he did not identify the records he sought with sufficient specificity. The precise language of Mr. Jones's request follows:
The recently issued faculty handbook states that the policies described therein were drawn from a number of University policy documents, but that only some of those reference documents were identified in the faculty handbook. I request each document that served as a reference for the sections in the handbook on conductance of meetings described on page 29 and that served as a reference for the sections on page 28 of the handbook on access to and proper destruction of records.
(Note: I am aware of and am not seeking the records disposal schedule signed by Lewis Cochran that is maintained in the King Library Archives. However, an example of records I am seeking would be a policy memo sent by the Medical Section administration to Deans, perhaps in the late 1970's, in relation to the policies covered by the agreement signed by Lewis Cochran. An officer in the Medical Section administration described to me the existence of such a memorandum).
It is the opinion of this Office that the University erred in characterizing Mr. Jones's request as a "request for a list of reference sources and information used to compose the language of the Faculty Handbook." We believe that in light of the preface appearing in the Handbook, the University cannot legitimately claim that the request is too nonspecific.
Mr. Jones's request was apparently prompted by the following passage in the preface to the Faculty Handbook:
The language in the Handbook does not supersede, supplement, or alter the language of official University documents such as the
Rules of the University Senate, the Governing Regulations, and the Administrative Regulations (GR and AR), the Code of Student Conduct, the University of Kentucky Bulletin or other documents which are described. Specific questions regarding the rights and duties of University employees - including faculty employees - can only be resolved by reference to the appropriate official documents not including this Handbook. For further information concerning the contents and location of these documents, see Appendix. While efforts will be made to update the Handbook, it should be remembered that changes in policies, procedures and other information are effective as the date of action or issuance by the appropriate University body even though such changes have not been distributed or referenced in the Handbook.
At pages 28 and 29 of the Handbook, the University briefly delineates its policies and procedures relative to open records and open meetings. It is clear to us that what Mr. Jones seeks is any documents which were used by the University in the formulation of these policies and procedures. This Office has consistently recognized that the right of access to public records is not absolute. As a precondition to inspection, a requester must identify with "reasonable particularity" those documents which he or she wishes to review. OAG 89-81; OAG 91-58; OAG 92-56; 94-ORD-12. We believe that Mr. Jones identified the records which he wished to inspect with sufficient clarity to enable the agency to locate them and make them available. To the extent that the University failed to provide Mr. Jones with these documents, it violated the Open Records Act.
It is, of course, conceivable that no such documents exist. A review of the open records and open meetings sections of the Faculty Handbook suggests that little more than the relevant sections of the Kentucky Revised Statutes and the University's own Records Retention Schedule were used in formulating these policies and procedures. Nevertheless, it is our view that if this were the case, the University was obligated to so advise Mr. Jones. If other documents were used in the formulation of University policy, the University is obligated to release them to Mr. Jones.
September 14, 1992, request for the documents submitted to Juanita Fleming by the Office of Legal Counsel relative to the University's meeting policy which were the basis for Ms. Fleming's January memorandum to Mr. Jones on this subject.
We next consider the University's denial of Mr. Jones's request for "guidance documents" submitted to Juanita Fleming by University Counsel on the subject of the University of Kentucky's meetings policy. Relying on KRS 61.878(1)(k) and KRS 422A.0503, Mr. Clapp asserted that those records were exempt from inspection because they consist of "protected privileged communications between attorney and client . . . ." Elaborating on this position, the University argued that Dr. Fleming qualifies as a "representative of the client," Mr. Darsie qualifies as a "lawyer," and the communication was intended to be "confidential . . . ."
Mr. Jones counters that the attorney-client privilege must be narrowly construed "to prevent agencies from hiding agency records merely by placing them in or passing them through an attorney's files." In support of this position, he cites a series of federal cases which hold that the privilege is limited to protection of confidential disclosures, and cannot be read so broadly as to encompass established agency policy. Continuing, Mr. Jones observes:
These are clearly the parameters in the present case as well. The requested documents contain statements and descriptions of agency policy on meetings, and such descriptions reveal no confidential facts about final agency policy . . . . [They] . . . were referred to by Juanita Fleming and the Legal Counsel as "guidance" documents . . . .
Moreover, he asserts, whatever privilege those documents arguably might have enjoyed was waived by their release to third parties.
We concur with Mr. Jones in his view that the documents which were submitted to Juanita Fleming by the Office of Legal Counsel relative to the University's meeting policy, and which were the basis for her January memorandum to Mr.
Jones, are not shielded from disclosure by the attorney-client privilege. Accordingly, those documents must be disclosed.
KRS 61.878(1)(k) authorizes public agencies to withhold "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." This provision operates in tandem with KRS 422A.0503 to exclude from public inspection otherwise public records protected by the attorney-client privilege. KRS 422A.0503(2) establishes the general rule of privilege:
A client has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made for the purpose of facilitating the rendition of professional legal services to the client:
(a) Between the client or a representative of the client and the client's lawyer or a representative of the lawyer;
(b) Between the lawyer and a representative of the lawyer;
(c) By the client or a representative of the client or the client's lawyer or a representative of the lawyer representing another party in a pending action and concerning a matter of common interest therein;
(d) Between representatives of the client or between the client and a representative of the client; or
(e) Among lawyers and their representatives representing the same client.
The privilege thus consists of three elements: The relationship of attorney and client, a communication by the client relating to the subject matter upon which professional advice is sought, and the confidentiality of the expression for which the protection is claimed. R. Lawson, Kentucky Evidence
Law Handbook'5.10 at 232 (1993), citing United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989). Its purpose is to insure that client confidences to an attorney are protected, thereby encouraging clients to freely communicate with their attorneys. As Mr. Jones correctly notes, the privilege "must be strictly construed and given no greater application than is necessary to further its objectives." Kentucky Evidence Law Handbook, '5.10 at 232.
The records withheld by the University consist of a series of memoranda exchanged by University counsel and members of the faculty, in their roles as University administrators, pertaining to the applicability of the Open Meetings Act in specific factual contexts. In addition, the University withheld a brief cover memorandum from Mr. Darsie to Ms. Fleming, in which he described the attached correspondence as "guidance documents on the Open Meetings statutes going back to 1974." It is clear that the University can be a "client" and University counsel can function as "attorney" within the relationship contemplated by the privilege. This appears to be the case in the instant appeal. The individuals to whom the memoranda are addressed seek a legal opinion from University counsel in the pursuit of their administrative duties, and Mr. Darsie provides such opinions.
However, the University fails to demonstrate a fundamental prerequisite to assertion of the attorney-client privilege: confidentiality both at the time of the communication and maintained since. Although Mr. Clapp states that University counsel "obvious[ly]" did not intend to have the documents disclosed to third parties, he offers no evidence in support of this contention. The burden is on the University to demonstrate that confidentiality was expected in the handling of these communications, and that it exercised reasonable caution in insuring that the information contained therein was protected from general disclosure. There is little in these records which suggests a need for confidentiality. Indeed, in an April 25, 1975, letter to a Dr. Czaky, Mr. Darsie expresses the hope "that some of the previous opinions of this Office regarding this matter had come to [Dr. Czaky's] attention." Thus, not only has the University failed to affirmatively establish confidentiality, but the evidence demonstrates an attempt to disseminate the memoranda within the agency.
If the University were able to establish that some attempt had been made to limit disclosure of the documents, we
would have a different case. Our review of the documents in dispute in this appeal discloses no attempt on the part of University counsel to maintain their confidentiality. The University having failed to establish this essential prerequisite to assertion of the privilege, we conclude that it improperly relied on KRS 422A.0503 and KRS 61.878(1)(k) in denying Mr. Jones access to the disputed records, and must make them available for inspection.
Records of the following meetings:
a. Minutes of the meeting of the college-level appeals committee with Mr. Jones, the Chairman of the Entomology Department, and the Associate Dean of Research relative to Mr. Jones's merit salary performance evaluation appeal;
b. Preliminary notes or other records authored by the members of the Chancellor's merit salary appeals committee in connection with the testimony of Dean Little and the associate deans at a spring '91 meeting;
c. Minutes of the meeting of the merit salary appeals committee with the Dean and the associate deans referenced above;
d. Preliminary notes and other records authored by the members of the President's Privilege and Tenure
Committee in connection with the testimony of Chairman Pass in the fall of 1988.
e. Minutes of the meeting of the Privilege & Tenure Committee with the Entomology Chairman referenced above.
f. Preliminary notes and other records of a meeting of the Entomology faculty in connection with Ms. Marijo Wilson's 1988 four year tenure review at which the faculty voted that she be terminally reappointed;
g. Preliminary notes and other records of a meeting of the Entomology faculty in connection with Ms. Marijo Wilson's 1988 four year tenure review at which the faculty withdrew its decision that she be terminally reappointed.
In September 1992, Mr. Jones requested access to records relating to a meeting of the college-level appeals committee which heard his merit salary performance evaluation appeal. Specifically, Mr. Jones requested the minutes of that meeting, and any "preliminary notes" prepared by committee members. The University denied his request for the minutes of this meeting, advising him that "[r]ecords as described do not exist." With respect to preliminary notes and other records, the University maintained that any such records "do not fall within the definition of 'public record' as contained in KRS 61.870(2)." Elaborating on this position, Mr. Clapp explained:
We have made no effort in each case to ascertain the identities of the membership of the committees involved, but Dr. Jones has received the results of those meetings: a report from the Committee recommending to the appropriate official what action should be taken.
Quite simply, any such personal notes reflecting the writer's version of testimony before them which may have been taken by individual members of one of these committees, while perhaps discoverable in a court of law, are not "prepared," "owned," "used," "in the possession of," or "retained" by the University of Kentucky or any of its subagencies, as required by the Open Records Act to qualify as a "public record" KRS 61.870(2). If there existed an official tape or transcript of testimonies, we believe that Dr. Jones would be entitled to those records.
The University took the same position relative to Mr. Jones's request for minutes and preliminary notes of the Chancellor's merit salary appeals committee and the President's Privilege and Tenure Committee.
Mr. Clapp advanced a nearly identical argument in response to a request submitted by Ms. Marijo Wilson, a colleague on whose behalf Mr. Jones appealed. Ms. Wilson requested preliminary notes and other records of the 1988 meeting of the Entomology faculty at which the faculty voted that she be terminally reappointed, and the subsequent meeting at which that decision was withdrawn. Mr. Clapp denied her request, explaining that these records:
[I]f they exist, are not subject to inspection under the Kentucky Open Records Act in that they do not fall within the definition of 'public record' as contained in KRS 61.870(2), but rather are the personal property of . . . [the individual faculty members.]
In view of the similarity of their requests, and of the University's responses, Mr. Jones incorporated these issues in his appeal.
Mr. Jones challenges the University's position, arguing that these records possess all of the indicia of public records, as defined at KRS 61.870(2), in that they consist of "papers . . . which are prepared, owned, used, in the possession of or retained by a public agency." Mr. Jones notes that university faculty are declared to be public employees at KRS 61.878(3), and thus fall within the definition of public agency set forth at KRS 61.870(1).
Moreover, Mr. Jones asserts, Kentucky's courts and the courts of other jurisdictions have held that preliminary notes are public records for purposes of the Open Records Law. Citing City of Louisville v. Courier-Journal and Louisville Times Co., Ky.App., 637 S.W.2d 658 (1982) and Michigan Professional Employees Society v. Department of Natural Resources, Mich.App., 482 N.W.2d 460 (1992), and a series of Attorney General's opinions, he observes:
These court rulings and Attorney General decisions leave no doubt that the requested records cannot credibly be lumped by the Custodian of Records with fireside doodling in the privacy of one's home, or with a case citation jotted on the back of a napkin by an agency attorney while eating his/her lunch. The requested records were created on publicly paid work time by public officials in the conduct of their official duties as members of a public agency.
In Mr. Jones's view, the University's position establishes a dangerous precedent, encouraging "all public agencies to lock away a major portion of public records under the guise that they are 'personal property.'"
This portion of Mr. Jones's appeal raises two questions:
1. Whether the University properly denied his request for minutes, preliminary notes, and other records generated in the course of the college-level appeals committee meeting, Chancellor's merit salary appeals committee meeting, and President's Privilege and Tenure committee meeting at which Mr. Jones was the subject.
2. Whether the University properly denied Ms. Wilson's request for preliminary notes and other records of the 1988 meetings of the Entomology faculty at which she was the subject.
In OAG 94-24, this Office enunciated a standard by which various bodies within the University may be judged relative to the application of the Open Meetings Law. At page 3 of that advisory opinion, we stated that for purposes of KRS 61.805(2) a "committee" consists of "a group of persons acting as a unit, to whom there has been officially delegated the responsibility to consider, investigate, take action on, or report on specific matters entrusted to it." We then applied this standard to various bodies within the University. We noted that the opinion was intended to provide guidance, but did not carry the force of law. Pursuant to KRS 61.835, all public agencies are required to record minutes of actions taken at their meetings.
In an earlier decision, however, we recognized that an appeal brought pursuant to KRS 61.880(2) is not the appropriate forum for a determination of whether an entity is a public agency for purposes of the Open Meetings Law. 94-ORD-15. Accordingly, we do not reach this issue, or the issue of whether these entities are required to create minutes of their meetings pursuant to KRS 61.835. If Mr. Jones wishes to challenge the University's failure to create minutes of these meetings, he may do so through the mechanism of an open meetings appeal pursuant to KRS 61.846(2). It is sufficient for open records purposes that the University denied the existence of minutes of these meetings.
This Office has consistently recognized that a public agency cannot furnish access to documents which it does not have, or which do not exist. OAG 83-11; OAG 87-54; OAG 88-5; OAG 91-112; OAG 91-220; OAG 92-85. A request for such documents is therefore moot. The University's response to these requests was entirely proper.
We are not persuaded by the University's argument that the preliminary notes which were taken by the members of the various committees which considered Mr. Jones's merit evaluation rating appeal, and his promotion and tenure, are not public records. The term "public record" is broadly defined to encompass:
[All] books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings or other documentary materials regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency.
KRS 61.870(2). We concur with Mr. Jones in his view that handwritten notes taken by a public employee in the discharge of his public duties may properly be treated as public records. While in most instances, such notes would be excluded from public inspection by operation of KRS 61.878(1)(h), KRS 61.878(3) mandates the release of "any record including preliminary and other supporting documentation" to a public employee, including a university employee, upon request, as long as those records "relate to him." If such records exist, the custodian of records is obligated to locate them, and make them available for inspection and copying by Mr. Jones.
We would reach the same conclusion with respect to Ms. Wilson's request for preliminary notes taken at the Entomology faculty meetings at which her continued employment was discussed had she followed up the denial of her request with an appeal to the Attorney General. Because this appeal was submitted by Mr. Jones, we cannot direct the University to release the notes to him. While these professors may have a shared interest in personnel decision-making at the University, KRS 61.878(3) does not mandate release of records relating to a public employee, including a university employee, to a third party. Ms. Wilson may, of course, pursue her remedies under KRS 61.880(2).
September 11, 1992, request for letters of resignation of a number of University employees.
In the final portion of his appeal, Mr. Jones challenges the University's refusal to release unredacted copies of the letters of resignation submitted by a number of University employees who are identified in his September 11 request. Mr. Clapp explained that the letters were edited pursuant to KRS 61.878(1)(a) to avoid a clearly unwarranted invasion of personal privacy. He subsequently provided this Office with copies of the letters in an effort to substantiate his position. It was the University's position that "the personal privacy exemption applies in that various intimate details of the writer's lives are discussed and are thus covered by the privacy analysis contained in Kentucky Board of Examiners of Psychologists v. Courier-Journal, 826 S.W.2d 324, 328 (Ky. 1992)." In closing, Mr. Clapp urged this Office "to consider the guidance of the Supreme Court that the policy of the open records act [sic] is not to satisfy the public's curiosity."
Citing a series of opinions of this Office, Mr. Jones argues that "[t]he public has [a] legitimate interest in the
reasons for resignation of public employees." Continuing, he observes:
Public confidence in the conduct of public officials has seriously declined, increasing the public's interest in matters relating to the proper functioning of public agencies. To the extent that a public employee is lost due to possible improper functioning of his/her public agency, there is a public interest in those reasons that overrides any personal privacy interest protected by KRS 61.878(1)(a). Therefore, any reason for termination [sic] contained in letters of resignation that relate to the functioning of that agency are matters of overriding public interest.
In support of this position, Mr. Jones cites OAG 81-345, OAG 83-415, and OAG 85-136.
We are asked to determine if the University properly relied on KRS 61.878(1)(a) in redacting portions of the letters of resignation submitted by five named University employees. We conclude that the University's reliance on the privacy exception was misplaced, and that, with the exceptions noted below, it must release the letters of resignation to Mr. Jones in their entirety.
As Mr. Jones correctly observes, this Office has consistently recognized that, in general, letters of resignation submitted by public employees are not excluded from public inspection by operation of KRS 61.878(1)(a). See, e.g. OAG 85-136; OAG 81-345. Common to these opinions is the recognition that the privacy exemption applies only to matters which are unrelated to public business. Matters relating to the employment of a public employee are of considerable public interest. Matters relating to the management and operation of a public agency which prompted a public employee to tender his resignation are of the greatest public interest.
We have examined the four available letters of resignation provided to this Office by the University. Two of the four letters contain nothing that could be deemed to implicate personal privacy concerns. These letters consist of little more than notification to the University of the anticipated date of resignation. The third letter contains general comments relating to the employee's decision to resign. It addresses the employee's relationship with the chairman of the department, and how that relationship contributed to his decision to resign. The fourth letter contains an extensive discussion of the decline of the employee's department under the chairman's leadership. Although the disclosure of these two letters might prove embarrassing to the University, we do not agree with Mr. Clapp that their contents implicate privacy interests of sufficient importance to override the public's right to know.
That right to know, as articulated in Kentucky Board of Examiners, supra at 328, is "premised upon the public's right to expect its agencies properly to execute their statutory function." To the extent that these letters relate to the management and operation of the various University Departments to which the employees were attached, we believe that the public's interest in disclosure is superior to the privacy rights of the employees who drafted the letters.
Consistent with the position expressed in part three of this decision, the University may, in its discretion, redact those portions of Mr. Joe Dennis Fox's letter of resignation pertaining to his merit evaluation and student evaluations. In our view, the employee's privacy interest in this information outweighs the public's interest in disclosure, since it has little or no bearing on whether the University is properly executing its statutory function. Release of the balance of these letters will not merely satisfy the public curiosity, but will subserve the public's interest in monitoring its public agencies, providing "impetus for . . . [those agencies] steadfastly to pursue the public good." Kentucky Board of Examiners, supra at 328. The University is therefore directed to release the letters of resignation of the named individuals in their entirety, but may redact those portions of Mr. Fox's letter pertaining to his evaluation.
As a final and somewhat peripheral matter, Mr. Jones asks that this Office render a decision on the extent to which the Open Records Law protects requesters from public agency
retaliation for repeated records requests. He notes that on several occasions he and his colleagues have encountered resistance from the University in responding to their requests. As an example, he attaches a copy of a May 13, 1991, letter from the former custodian of records, Jack C. Blanton, in which Mr. Blanton inquired:
Given the volume of your requests within the past week, and the amount of time required by my staff and the staff in other departments to produce the requested records, I want to know if your your [sic] motive in making these repeated requests is to disrupt essential functions of the University in producing voluminous public records. What assurances can you give me this is not the case?
Mr. Jones maintains that it is improper for the University to obstruct access to public records by various devices, including shifting the burden of proof relative to KRS 61.872(5). He seeks a clear statement from this Office "that agency frustration and intimidation of employee requests for their own records cannot be tolerated."
We begin by noting that the intent of the Open Records Act is clearly expressed at KRS 61.871, which provides:
The General Assembly finds and declares that the basic policy of KRS 61.870 to 61.884 is that free and open examination of public records is in the public interest and the
exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others.
Although Mr. Jones does not in this instance allege that the University denied a particular request, he argues that its conduct in dealing with employees who make repeated requests is likely to have a chilling effect on the vigorous assertion of these employees' rights under the Open Records Law.
This Office is not empowered to curb agency abuse of the Open Records Law, or the abuse of individuals who exercise their rights under that law, by the imposition of penalties. Our authority is defined by statute. As we noted at page 3 of 94-ORD-8:
Pursuant to KRS 61.880(2), the Attorney General is required to review a public agency's denial of a request to inspect a public record, if a complaining party wishes him to do so, and to issue a written decision stating whether the agency violated the Open Records Act. Although generally an appeal to the Attorney General is precipitated by an agency's denial of a records request, an appeal may come to him in a different posture. For example, a public agency may refuse to comply with the procedural requirements of the Act or otherwise subvert the intent of the Act short of denial of inspection. KRS 61.880(4). In these instances, the Attorney General is also empowered to issue a decision which, if not appealed to the circuit court within thirty days of issuance, has the force and effect of law. There are, however, limitations on the Attorney General's authority relative to the Open Records Act.
While this Office strongly discourages agency attempts to frustrate access to public records, and finds that such conduct clearly contravenes the spirit and intent of the Open Records Law, we cannot afford Mr. Jones the relief he apparently seeks.
Rather Mr. Jones's remedy lies in the courts. KRS 61.882 and KRS 61.991 establish various penalties for
noncompliance with the Open Records Law. We assume that a court would look with considerable disfavor on a public agency whose conduct suggested a flagrant disregard for the law, and that it would exercise in full measure the powers vested in it to punish the agency for noncompliance. No such evidence has been presented in the present appeal. However, if evidence exists that the University, or any other public agency, has intentionally subverted the intent of the Open Records Law, that evidence should be brought to the attention of the appropriate authorities who may proceed to a determination of these matters.
This appeal raises a number of open records issues which are of great importance to the University, and public agencies generally. These issues are also, of course, hotly contested. In this decision, we attempt to reach a reasoned resolution of the issues by striking a rational balance between the right of public access, and the need for public agencies to conduct their day to day administrative functions without unnecessary impediments.
Mr. Jones and the University of Kentucky may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Hon. Donald Clapp
Vice President for Administration and
Official Records Custodian
104 Administration Building
University of Kentucky
Lexington, KY 40506-0032
Office of University Counsel
104 Administration Building
University of Kentucky
Lexington, KY 40506-0032
Mr. Davy Jones
204 Funkhouser Building
University of Kentucky
Lexington, KY 40506-0054